Five Reasons Why John Boehner’s Obamacare Lawsuit Doesn’t Pass the Straight-Face Test

Back when I was representing death row inmates in criminal appeals, I had a legal responsibility to my condemned clients to raise every “arguable” issue that had any reasonable potential for success.

This was a solemn obligation designed to promote zealous representation, but it was also one that was limited in practice by what some of us in the defense bar informally called the “straight-face” test. Under the test, if a particular claim or contention was so frivolous and lacking in merit or good faith that you cracked a wry smile or shook your head in disbelief at the mere thought of articulating it in court — say, for example, invoking “reverse psychology” in a capital case by arguing that your client really would be better off dead — you might well decide not to assert the claim, lest you lose credibility on all your other issues.

When I heard in June that House Speaker John Boehner threatened to sue the Obama administration for implementing health care and immigration reform via executive order, I not only cracked a wry grin, I nearly doubled over in laughter, thinking that such a case would never see daylight. Friday, however, Boehner and the Republican House leadership made good on the threat, lodging a federal complaint in Washington, D.C, over Obamacare and promising to consider another over the president’s newly announced policy deferring the deportation of as many as 5 million undocumented immigrants.

Having read the actual Obamacare complaint drafted by George Washington University Law School professor Jonathan Turley, I’m still straining to keep a straight face. Under the terms of the complaint, the House isn’t trying to repeal the Affordable Care Act — something it has voted to do in whole or in part 54 times since 2011. Rather, it’s trying to do the exact opposite, arguing that the president has exceeded his constitutional authority by not fully enforcing the act.

Specifically, the suit charges that the administration has violated the act and the Constitution by postponing implementation of the so-called employer mandate that larger businesses offer health insurance to their full-time workers or pay penalties. For enterprises with 100 or more workers, the mandate takes effect next year. Companies with 50 to 99 employees have until 2016 to comply.

The suit also alleges the administration has unlawfully made “offset” payments not yet appropriated by the Republican-controlled Congress to insurance companies to defray the cost of health insurance subsidies for low-income people. Without the offsets, insurance co-payments, deductibles and out-of-pocket costs will rise even more than they have. There are any number of reasons why the lawsuit falls short of the straight-face test and should fail. Here are my top five:

1. The House Lacks Standing to Sue: As University of Chicago Law School professor and Slate.com commentator Eric Posner wrote in July when Boehner’s machinations were still on the drawing board, “A court will almost certainly dismiss any lawsuit of the sort Boehner intends because the House of Representatives lacks ‘standing’ to bring a suit — meaning that it has not suffered a concrete injury as a result of Obama’s actions.” To defeat a dismissal motion, Boehner and his allies will have to show that the president’s failure to enforce the Affordable Care Act has injured the House as an institution of government and not simply irked, disappointed or frustrated Republican legislators.

Although the U.S. Supreme Court conferred standing on the House to participate in United States v. Windsor regarding the Defense of Marriage Act after the Obama administration declined to pursue the case, the rules of standing are often invoked to short-circuit even the most meritorious lawsuits. Just ask Truthdig columnist Chris Hedges or Amnesty International, whose challenges, respectively, to the indefinite detention provisions of the National Defense Authorization Act and NSA spying were sent packing courtesy of those rules. The House Obamacare lawsuit likely is headed for a similar fate.

2. Boehner’s Case Has No Technical Legal Merit: Assuming Boehner’s complaint survives a standing challenge, it will crash and burn on the merits.

In September, at the request of an unnamed House member, the apolitical Congressional Research Service released a report on Boehner’s critique of the delayed employer mandate. Summarizing the report in an article published by the Washington Monthly, attorneys Simon Lazarus and Elisabeth Stein of the Constitutional Accountability Center wrote:

“Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis — no ‘there’ there — at all.”

Whether delaying the employer mandate was the best available policy choice, according to the CRS, the decision was made in full technical compliance with the federal Administrative Procedure Act, governing executive-branch rule-making procedures. And as Lazarus testified before the House Rules Committee in July, the Republicans were silent when George W. Bush delayed the rollout of Medicare Part D to ease the new burdens associated with that program.

And although the CRS did not address the subject of insurance company offset payments, Boehner’s complaint acknowledges that the offsets are authorized under sections 1402 and 1412 of the Affordable Care Act. If any branch of government is at fault for failing to fund the offsets and make the low-income subsidies work, it’s Congress. Someone please hand the speaker a mirror so he can locate the guilty party.

3. The House Lawsuit Has Been Brought in Bad Faith, and Isn’t Really About Executive Overreach or Separation of Powers: Both Boehner and professor Turley claim that the House lawsuit and the case that may be filed against the president’s deportation policy are necessary to curb the reach of the “imperial presidency,” and restore the balance and separation of powers between the branches of government by limiting the ability of the president “to govern” by means of executive orders.

In fact, the House’s lawsuit is nothing of the sort. Boehner is simply lying. Turley is naive.

It would be one thing if the Republicans had a plan to replace Obamacare with something better, like Medicare for all or single payer, but they don’t. Given the number of times the House has tried to kill Obamacare and the full-throated hysteria animating those efforts, it could not be clearer that Boehner’s complaint has been made in bad faith.

Although presidential abuses of power are a real and mounting concern, every president has, to some extent, managed the operations of government by means of executive orders. Some orders, like Lincoln’s Emancipation Proclamation, Eisenhower’s directive (EO 10730) to federalize the Arkansas National Guard to desegregate public schools in Little Rock, and Lyndon Johnson’s decision (EO 11246) to bar discrimination in federal employment, stand as landmark human rights achievements that advanced the constitutional principles of due process and equal protection in the face of entrenched congressional opposition.

Obama’s executive orders on medical insurance and immigration may not rise to the level of Lincoln’s or Johnson’s, but with respect to health care, they will help save lives, and as for immigration, they will save families from being needlessly torn apart.

4. Hiring Turley Does Nothing to Change the Partisan Nature of the House Lawsuit: Much has been made of the fact that Jonathan Turley is a self-described liberal. A onetime MSNBC regular on “Countdown with Keith Olbermann,” Turley has since become the darling of Fox News, which has used the professor’s liberal reputation to sanitize and defend the House’s actions.

In fact, Turley was Boehner’s third choice for the role of lead counsel, hired at the taxpayer-funded rate of $500 per hour, only after two prominent right-wing attorneys quit without filing suit.Although there is little question about Turley’s scholarship, his politics have never been consistently progressive. Among other past segues to the right, he testified in support of Bill Clinton’s impeachment, and he has argued in USA Today op-eds for legalizing polygamy and in support of the NRA’s interpretation of the Second Amendment. He also famously and unsuccessfully defended former federal Judge Thomas Porteous in his 2010 impeachment trial before the Senate. Porteous was convicted by an overwhelming bipartisan verdict on four counts of corruption and making false statements.

Turley has, however, been a consistent critic of presidential power. In 2012, he posted a column, titled “Ten Reasons the U.S. Is No Longer the Land of the Free,” on his influential blog in which he cited such abuses of executive authority as indefinite detention, NSA spying, extraordinary rendition and the assassination of American citizens abroad. If the professor is still dedicated to reining in the imperial presidency instead of mugging for Fox, he might consider new lawsuits against Obama on such real and outrageous practices rather than building sham attacks against health care and immigration reform.

5. Boehner Can Win Only by Taking His Case to the Supreme Court: For all the above reasons, Boehner’s lawsuit is a loser destined to founder, at least before the lower courts. The speaker’s only chance to prevail is to get his case before the Republican-dominated Supreme Court, which since the judicial coup d’état of Bush v. Gore has increasingly operated as an institution in which pure politics has displaced the rule of law.

Even then, Boehner’s suit will still flunk the straight-face test. The only difference will be that our wry smiles will give way to expressions of mourning and rage.